WJP & TP - [2002] FMCAfam 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WJP & TP

[2002] FMCAfam 315

FAMILY LAW – Contravention of parenting orders – onus on respondent to prove reasonable excuse.

Applicant:

WJP

Respondent:

File No:

PAM2502 of 2002

Delivered on:

13 September 2002

Delivered at:

Parramatta

Hearing Date:

13 September 2002

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Berry

Solicitors for the Applicant:

Bell & Partners

Counsel for the Respondent:

Ms Kominos

Solicitors for the Respondent:

Vizzone Ruggero & Associates

ORDERS

That the contravention filed 27 August 2002 is proved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2502 of 2002

WJP

Applicant

And

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The proceedings

These proceedings today have been proceedings brought by WJP in which it is alleged that TP has contravened parenting orders. The relevant orders are those entered by consent on 30 April 2002 in the Family Court. Those orders have been registered in this court and thus the court has jurisdiction to hear the contravention application.
The focus of the proceedings is the parties' younger son, Marcus (not his real name). Marcus was born in 1990. He lives with the respondent, and pursuant to the orders, is to have contact to the applicant.

Did the respondent contravene an order?

Contact was due to take place on the weekend of 9 August 2002. It did not. It is common ground between the parties that that evening the parties' elder son, Scott (not his real name), and the applicant arrived at the mother's home, the nominated collection point, to collect Marcus for contact.
The events themselves are well documented in affidavit evidence, as well as on a video tape recording that was made without the applicant's knowledge or consent[1]. Over his counsel's objection I admitted the video into evidence. It has been most illuminating.
[1] Exhibit A
The applicant has shown that the ordered contact did not occur. Thus the focus of the proceedings becomes whether or not the respondent had a reasonable excuse for non-compliance with the order. "Reasonable excuse" is defined in s.70NE of the Act. The standard of proof is identified as the balance of probability in s.70NEA. The onus is on the respondent to prove the asserted reasonable excuse.
The focus of the applicant's case is whether the respondent has met her positive obligations established by both the Family Law Act and the orders to promote compliance with the contact order. The focus of the respondent's case is that she says she has encouraged contact and hence met her obligations. Secondly, that the behaviour of the parties' elder son, Scott, created a reasonable excuse because of the fear she held for not only her own safety, but also Marcus that evening.
I must examine two points in time. Firstly, the events prior to the contact changeover, and secondly, the events of the handover themselves.
Underlying the proceedings is the fact that the applicant has

re-partnered and now lives in a de facto relationship with his partner, K, and her son, Matthew (not his real name). That has been the case since about May of 2002.
When the orders were entered by consent, the child's concerns about his father's new partner were reflected in a cautious stepped program for contact. The orders provided that K and Matthew would not participate immediately in contact. The parties, knowing their son well anticipated that after a few weeks Marcus would be quite comfortable to continue contact whether or not K and/or Matthew were present.
The evidence revealed that the applicant successfully prosecuted an earlier contravention application. Contact resumed after the court found that the respondent had breached the orders on 26 July 2002. The weekend that we are now concerned with is the weekend that immediately followed that contact occasion.
A parent who has a residence order, as well as an order that the child has contact with the other parent, has a significant responsibility. This responsibility arises by operation of the Act itself and is discussed in some detail in the case law. Where a parent has a child who has some reluctance to participate in contact, they must discuss the child's reluctance with the child, reason with the child in relation to the factors that are concerning the child, persuade the child to another point of view that will facilitate compliance of the orders, and ultimately direct the child to attend contact. It is a significant responsibility.
The manner by which the respondent says she met these responsibilities is summarised primarily in her affidavit evidence. The respondent says that, during the week prior to 9 August 2002 she encouraged Marcus to go with his father for contact, and said almost every day:
“You have to go with your father on Friday, he's your father and he wants to spend time with you.”
Marcus responded on contact unambiguously, saying that he does not want to go and that he hates going. At that point the respondent had a responsibility to bring to bear all the authority that a parent has over a child, even a twelve year old. Just as the respondent has the authority that can successfully make Marcus go to school when he does not want to go, she ought to be able to achieve attendance at contact if she brought to bear the authority that she actually has into play.
That she may not have done so to the extent that is required and which is within her capacity was reinforced when I saw the video. Although I only saw him for about five minutes it appears that Marcus is a young twelve year old, and is reasonably immature. There was no emphasis or determination in Marcus' voice when he initially said he was not going on the contact. Relevantly, there was no emphasis or force in the voice the respondent used when she told Marcus he had to go.
During submissions, Mr Berry emphasised, in essence, a distinction between words actually spoken and the manner by which an influential person, such as a parent can send subtle messages inconsistent with the spoken words. I agree with him that the respondent was not even subtle to Marcus in indicating that she really did not expect him to go on contact. Importantly that he had her tacit approval to refuse to attend. This is apparent from the following facts. Firstly, Marcus' bag, although ready, was not within reaching distance so that he could just pick it up and go. Also, the front door was locked. I do not accept the submission made by Ms Kominos that that was just ordinary security measures taken in almost every household across Sydney. That is because at six o'clock that evening, the appointed time, the respondent knew the applicant was arriving to collect Marcus for contact. In fact, the front door was the focus of everyone's attention at that time. I am satisfied that the only proper inference that can be drawn by the fact that the door was locked is that the respondent did not intend that Marcus would leave the house for contact.
Next there was the video camera operated by the respondent’s friend recording the whole event from an adjacent bedroom. This scene was set up in advance and it undermined the force of any words that the respondent may have spoken to Marcus. As well as also undermining any opportunity she may have had for a successful outcome that Marcus go on contact, she destroyed any prospects of success when she took these steps. At that point in time I am satisfied she is in breach of the order.
The events relating to Scott are unsatisfactory and extremely concerning. They however, come after the point of time the respondent had breached of the orders. I do not need to recount here all that was apparent on the video about the way the parties' elder son behaved towards his mother in the presence of his younger brother. Scott was abusive and threatening. The applicant was quite right to intervene. Probably given the dynamics of the parties, it was asking too much of Scott to expect him to be able to manage his mother's anticipated opposition to contact. It was a difficult situation for a young man, it was a difficult situation of course, for a twelve year old boy.
On the balance of probabilities, I am not satisfied that the respondent has demonstrated that she has done all that is required of her to prepare and encourage this child to attend contact on 9 August 2002, and the application is proved.
The application will be adjourned until after the parenting and other proceedings are completed in the meantime the respondent will comply with the existing orders.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 19 September 2002